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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between


UNITED TRANSPORTATION UNION,
LOCAL NO. 1715,
Union,
FMCS No. 12-02864
and
TRANSIT MANAGEMENT OF CHARLOTTE, INC.,
Employer.
_______________________________________________/

OPINION OF THE ARBITRATOR


October 5, 2012
After a Hearing Held August 24, 2012 at
The Charlotte Transportation Center, 3145 South Tryon Street, Charlotte, NC

For the Union:

For the Employer:

Calvin K. Studivant
Alternate Vice President Bus East
United Transportation Union
36 Sewall Avenue
Clifton, New Jersey 07011

John B. Smith
Smith Law Firm, PC
Suite 710
5950 Fairview Road
Charlotte, North Carolina 28210

The Nature of the Grievance


Grievant is a bus driver or operator employed by Transit Management of
Charlotte, Inc. (Employer or Company). Operators are represented by Local 1715
of the United Transportation Union (Union). The collective bargaining agreement
between the parties is effective from December 4, 2011 through June 30, 2013
(CBA).
Each operator is assigned to one of two Company facilities, the Charlotte
Transportation Center or the Davidson Garage; Grievant is assigned to the latter.
Although an operator may be assigned to a specific facility, his driving assignment
may not begin there. For example, Grievants driving assignment begins at the
Charlotte Transportation Center.
An operator is given a run assignment sheet known as a paddle sheet, which
details his route. CX 1. The paddle sheet specifies a Report Time, also called
Signon time. An operator who is assigned to pull a bus out of a garage is required to
personally sign a Dispatch Signon Sheet at the garage. UX 5. Other operators have a
choice of personally signing-on at their assigned garage or calling in to a dispatcher at
that garage. UX 1. The paddle sheet also specifies the operators Start Time, the time
he is to be at his assigned bus.
Grievant is assigned to bus route number 3066.1 CX 1. His Report or Signon

Technically the numbers refer to route numbers, but bus number is used for simplicity.
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Time is 1:21 pm; his Start Time is 1:31 pm; and his bus is scheduled to leave Charlotte
Transportation Center at 1:41 pm.
Grievants preference for starting work is to drive to the Davidson Garage by
1:21 in the afternoon and sign in personally with the dispatcher there. He then catches
the number 23 bus at 1:29, which takes him to the Charlotte Transportation Center
about 1:36, where he is to relieve the operator of the number 3066 bus. The problem
with Grievants preference is that he is due at the Charlotte Transportation Center at
1:31.
Because of Grievants tardiness, he was charged with miss-outs on March 13,
14, 20, and 21, 2012. A miss-out is described in Article IX of the CBA, although its
meaning is disputed:
Section A. Report-in Procedure. Operators not previously excused by the
Company must report for their assignments at the scheduled time or they will be
charged with a miss-out. When an operator is prevented from reporting on time
due to illness, injury, Union business, or bereavement leave, they must notify
the Company forty five (45) minutes prior to their scheduled sign-on time or
he/she will be charged with a miss-out (in accordance with the provisions of
Article IX Section C).
When Operators are unable to complete their assignment once they have
reported for work, the Operator will be permitted to lay off for a bonafide illness
or other acceptable reasons.
Any employee who has missed out or who has been laying off (which includes
employees off sick) must report for duty before 5:00 P.M. in order to be
assigned work the next morning. An employee reporting for an evening run
must report before 10:00 A.M. of the same day. In either case, an employee
failing to so report will be held off his/her assignment until the next day.

If a driver gets off sick or has a miss-out after 3:00 P.M., he/she has until 9:00
P.M. to call in to report for work for the following a.m. If a driver has a doctors
appointment after 3:00 P.M. and the doctor clears him/her to work the next day
he/she may report in by telephone or in person to the dispatcher. If an operator is
excused for a day it is understood that he/she will work his/her next scheduled
workday.
In the event an operator is delayed in reaching the relief point or dispatch office
due to a Company vehicle (bus or Company auto) being late that would have
enabled him/her to arrive at the relief point or dispatch office on time, he/she
will not be charged with a miss-out and will be entitled to pick up his/her run or
will be paid the hours of his/her assignment. Application of this paragraph shall
not result in the payment of run around time to another operator. ***
Section C. Miss-Out Procedure. Operators who miss out will be allowed to
work provided work is available as determined by the Dispatcher. If work is
available, the Dispatcher will assign the employee a new report time. The driver
must report by that time and he/she will stand last out at the bottom of the extra
board and will be required to work whatever assignment falls to him/her (up to
one full run). The operator will be paid for all time worked for the time he/she
reports, but will lose his/her guarantee for the day and will not be guaranteed the
two hour report time. Three (3) times in a rolling twelve month (12) month
period, the operator will still be charged with a miss-out for the day but will not
receive a point if he/she reports for work and receives an assignment from the
Dispatcher. It is understood that the operator will be allowed to work his/her
next regular assignment. Operators who call or report in person after one hour
will not be allowed to work. ***
Following the third-step grievance meeting, the Company dropped the March
13 and 14 miss-outs, but sustained the miss-outs on March 20 and 21, 2012. UX 1.
Grievant was charged with a miss-out on March 20 because he arrived at the Charlotte
Transportation Center about four (4) minutes past [his] start time of 1:31 p.m. UX 7,
Grievants third-step grievance letter, 3/26/12. After having missed out on March 20,
Grievant was charged with another miss-out on March 21 because he failed to report

before 10:00 A.M. of the same day, i.e., before 10:00 A.M. on March 21. Id.
The Companys Position
In its brief, the Company explains the rationale for the miss-out rule:
Run 3066 required that [Grievant] be at his relief point at the Transportation
Center by 1:31 p.m. Being at the relief point by the appropriate time is essential
to the smooth operation of the bus system for the public and to relieve the other
driver ending at that time.
When drivers have runs, such as [Grievants] 3066, which relieve a bus and
driver which is already in service and which are not pulling out from a garage,
they are required to be at their relief point at the time designated on the paddle
and may simply phone in. Drivers who choose to physically sign in at a garage
may do so provided they are at their relief point on time. [A Davidson Garage
dispatcher] testified that she is familiar with all of the operators that report to her
at the Davidson Street Garage and their runs. She testified that of the 33 reports
that she has, 20 call in.
Company Brief @ 3. The Company argues that the miss-out language is clear and was
correctly applied to Grievant. Company Brief @ 8-9.
The Company views the dispute as basically being a carry-over from collective
bargaining about payment for travel time on Company buses. Company Brief @ 5-6,
14-16. Grievant, after all, is not simply a rank-and-file operator but the General
Chairman of the Union. Company Brief @ 11. The Company prevailed in bargaining,
and its position was embodied in Article X of the CBA, entitled Check In-Travel
Time. CX 3.
Under Article X, operators with regular runs, including Grievant, are paid for 10
minutes of check-in time. Id., B. In Grievants case, this is the period from 1:21, his

Report Time, until 1:31, his Start Time. Operators with regular runs that do not begin
and end at the same location, are paid an additional 13 minutes for travel time. Id.,
C.2 Since Grievants route begins at the Charlotte Transportation Center and ends at
the Davidson Garage, he is paid for 13 minutes of travel time. CX 4.
The Company strongly urges the arbitrator not to re-write the agreement and
offers this authority in support of its position:
If a party attempts, but fails, in contract negotiations, to include a specific
provision in the Agreement, arbitrators will hesitate to read such provision into
the Agreement through the process of interpretation. In a nutshell, a party may
not obtain 'through arbitration what it could not acquire through negotiation'.
Elkouri and Elkouri, How Arbitration Works, 6th Edition, p 454, quoting from
U.S. Postal Ser. v. The Postal Workers, 204 Fed. 3rd 523, 530, 163 LRRM 2577
(4th Cir. 2000). The reason [Grievant] and the Union are asserting that he
physically must sign in with his dispatcher is because if he did, then an
argument could be made for additional travel time pay as was proposed by the
Union in negotiations and specifically rejected and not made part of the
Contract.
Company Brief @ 14.
The Unions Position
The Unions position and the fundamental issue in the case can be gleaned from
the following passages in the Unions Brief:
[The Companys] Dispatch Sign-on Sheet, for all Bus Operators assigned to and
dispatched from Davidson Garage, indicates that the Bus Operator assigned to
Run 3066 must report to Davidson Garage at 1:21 p.m. (Ex. U5). Union Brief
@ 2; emphasis supplied.
[The Companys] Drivers Alert notice to all Bus Operators and Supervisors
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Operators on certain routes not relevant here may be paid more.


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states, All Supervisors and Operators assigned to the Davidson Facility


should start reporting to the new location on Monday morning. This
document is still posted in the Bus Operators break room (Ex. U2). Union
Brief @ 2; emphasis supplied.
Run 3066, to which [Grievant] was assigned, have a scheduled report time at
Davidson Garage of 1:21 p.m. and a scheduled start time to pick up his
assigned bus at the Transportation Center of 1:31 p.m. Union Brief @ 2.
Article X, Check In-Travel Time, Section B., Check-In Time of the C.B.A.
provides ten (10) minutes for Bus Operators to check-in after their initial report
at their designated garage. Union Brief @ 2; emphasis supplied.
On March 20, 2012, [Grievant] reported to the Davidson Garage and signed
on run 3066 approximately 1:18 p.m. and proceeded to the bus stop to catch the
Number 23 bus to the Transportation Center. [Grievant] again arrived at
approximately 1:35 p.m. Upon arrival, [Grievant] was prevented from working
by [the] Station Manager []. [The Station Manager] informed [Grievant] that he
had given his run away . [Grievant] was not informed he had been charged
with a miss-out . Union Brief @ 5; emphasis supplied.
On March 21, 2012, [Grievant] reported to the Davidson Garage
approximately 1:16 p.m. to sign in for run 3066, but was unable to do so
because another operator had signed onto his run prior to 1:21 p.m. When
[Grievant] inquired into why his run had been given away, [a] Dispatcher []
replied that [Grievant] had received a miss-out and was supposed to report
back into work, and that he should wait around and speak with [the] Assistant
Superintendent of Operations. [The Assistant Superintendent of Operations]
stated that [Grievant] had two options, take a union business day or go to the
bottom of the extra board and wait for an assignment. Because [Grievant] was
unaware that he was given a miss-out on March 20, 2012, he declined to select
from the Companys options and expressed that the Companys actions were in
violation of Section C. of [Article IX of] the C.B.A. Union Brief @ 6; emphasis
supplied.
[Grievant] is not required to report by phone. [Grievant] reports and checkin at the Davidson Garage as per the C.B.A., [the Companys] Dispatch Signon Sheet & [the Companys] Drivers Alert notice (Ex. 6, C.B.A., Article IX (A),
Article X, (B) & [the Companys] Drivers Alert, U2). Union Brief @ 7;
emphasis supplied.
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Bus Operators assigned to the Davidson Garage location must report to and
check-in with the Davidson Garage Dispatcher for daily assignments (Ex. U2).
Pursuant to Article X (B) of the C.B.A., Bus Operators must check in 10
minutes prior to their start time (Ex. 6, C.B.A. Article X). Following check-in,
Bus Operators then travel to either the Charlotte Transportation Center or
another specific relief point to pick up their buses and begin their runs. Union
Brief @ 8; emphasis supplied.
The Issue
Per CBA, Article XXVII, C, Step V, the parties stipulated that the issue
presented is miss-out/report-in procedures under Article IX. However, it seems
clear from the portions of the Unions brief italicized above that the issue boils down
to the meaning of the phrase, must report for their assignments at the scheduled

time.
The Union states its case as follows:
The C.B.A. unequivocally states that an operator will not be charged with a
miss-out if he/she reports for their assignments at the scheduled report
time (Ex. 6, C.B.A. Article IX (A)). This is exactly what transpired in
[Grievants] case.
Union Brief @ 9.
The Company is equally assertive in stating its case:
[T]he language of Article IX is clear. Bus operators must be at their bus by
their start time or they will be charged a miss-out. There can be no other
interpretation.
Company Brief @ 9.
Analysis
The Company urges a semantical approach to explicating report and

assignment. Company Brief @ 8-9. Because both words are used with multiple
meanings by the parties, by the witnesses, and in the exhibits, the arbitrator prefers a
more operational approach. First, the arbitrator notes that different phrases are used in
the first paragraph of Article IX, A: report for their assignments at the scheduled

time and scheduled sign-on time. The difference suggests that reporting for
assignment is different than signing on, notwithstanding the fact that, on the Signon
Sheet itself, the sign-on time is referred to as Report time. UX 5.
At least three witnesses, including Grievant himself, referred to the paddle
sheet as a run assignment sheet. UX 4. Moreover, the Unions Brief repeatedly uses
assignment in the sense of run assignment: Union Brief @ 2 (Run Assignment Log

Sheet, referring to the paddle sheet, UX 4); Union Brief @ 3 (run work
assignments that do not begin and end at the same location, referring to Article X,
C); Union Brief @ 3 (Run Assignment, referring to Article XI, J); Union Brief
@ 7 (operators starting the last part of their assignment, referring to Article IX,
D); Union Brief @ 7 (Operators who work an assignment, referring to Article IX,
D); Union Brief @ 7 (Run Assignment, referring to Article XI, F).
Based upon the foregoing considerations, the arbitrator concludes that the
phrase, must report for their assignments at the scheduled time, as used in Article
IX, refers to run assignments and means that operators must be physically present
at their buses by their Start Times, which, in Grievants case, means 1:31 pm. It is

undisputed that Grievant was late on March 20, 2012, so that he appropriately was
charged with a miss-out on the 20th. However, that conclusion does not answer the
question of the appropriateness of charging Grievant with a second miss-out on
March 21, 2012, for not reporting before 10:00 am that morning.
Grievant claims that he was not told that he had been charged with a missout on March 20, 2012, and the Union raises the just cause defense. Union Brief @
8, citing Article XXVI, B. Although the Company dropped the miss-outs for
March 13 and 14, 2012, it is clear from the evidence and even from the Unions
Brief @ 3-5 that Grievant was warned back then about arriving late at the Charlotte
Transportation Center.
A dispatcher explained to Grievant that if he insisted upon reporting in
person at the Davidson Garage and taking a bus to the Charlotte Transportation
Center, then he should come in earlier and catch the Three (3) Plaza Road at 1:11
p.m., so as to arrive at the Transportation Center by his Start Time of 1:31. Union
Brief @ 3, citing UX 7. The Union claims that this warning amounted to
intimidation and that the dispatchers demand that Grievant come in earlier
without extra pay constituted a violation of the Fair Labor Standards Act. Union
Brief @ 4, 6.
Supplementing the evidence that Grievant had been personally warned about
arriving late is UX 6, Bus Operator Training Manual, which the Union itself

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introduced. The Manual plainly states, A 'miss-out' will be assessed to you if you
are late by only one second. This warning is quoted on the very first page of text
of the Unions Brief @ 2.
The arbitrator might agree that a better practice would be for the Company
to immediately notify an operator of a miss-out, but the Union points to no
provision of the CBA that requires the Company to do so. To the contrary, the
CBA expressly allows the Company 14 days in which to act. Article XXVI, B. In
any event, it is difficult to believe that the General Chairman of the Union does not
know the rules.
The Unions insistence that Grievant must report in person to his assigned
garage even though his bus does not leave from there is implausible in light of the
Companys policy of allowing similarly situated drivers to call in. The policy is
arguably implicit in Article IX, C, which states that Operators who call or report
in person after one hour will not be allowed to work. Alternatively, authority for it
can be found in the management rights provision of the CBA, which provides in
pertinent part:
Employees of the Company, members of the Union Agree, and the Union
agrees, that said members and employees will observe and conform to the
Rules and Regulations of the Company .
[T]he Company expressly reserves to itself the establishment of reasonable
rules, instructions and regulations necessary for safe, proper and sound conduct
of its business .

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Article II, A.
Evidence that 20 out of 33 operators assigned to the Davidson Garage call in
stands uncontradicted. The fact that split run operators may call in under Article X,
D does not mean that others may not do so as well. Union Brief @ 7. See Article
IX, A (may report in by telephone or in person); Article IX, C (call or report
in person). There is a call-in policy in effect, and Grievant failed to avail himself
of it.
The Unions reliance on UX 2, a notice dated October 10, 2011, about
anticipated completion of some construction at the Davidson Garage, is badly
misplaced, as it is little more than instructions about where to park once the
construction is completed. Union Brief @ 2, 7, 8. Regardless of whether there once
may have been a requirement like the Union claims, it long has been waived, if not
changed. Elkouri & Elkouri, How Arbitration Works (6th ed), @ 560-566. Since
there presently is no such requirement, the Company has not violated the Fair
Labor Standards Act, a belated charge that was not part of the grievance. Union
Brief @ 6. The Company had just cause to assess a second miss-out against
Grievant on March 21, 2012.
Conclusion
In International Association of Firefighters Local 747 and City of St.
Petersburg, 09-1 ARB 4525, 109 LRP 15362 [2009 WL 8160737] (Arb 2009),

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the City accused the IAFF of attempting to gain through arbitration what it had
failed to obtain at the bargaining table. Specifically, the IAFF wanted the City to
do away with mandatory annual physicals. The grievant refused to take a physical
because of the terms of release forms he was required to sign. At the second step
hearing, the hearing officer accused the Union of seeking to obtain through
arbitration what it had failed to achieve through collective bargaining. In that
complicated case, the arbitrator sustained the grievance because the terms of the
release forms violated the grievants rights under the Florida Constitution.
However, the arbitrator emphatically upheld the Citys right to require
annual physicals and releases that did not impinge upon constitutional rights:
Nothing in this opinion should be construed as forbidding the City from
requiring firefighters to take physical exams. The point is worth
emphasizing, because the fire chief testified that, at the consultation held
August 22, 2008, the Union proposed eliminating physicals. In the hearing
officers Response (JX 6 @ 3), he went so far as to write, Lt. Martins
actions suggest that he attempted to achieve through the grievance process
what he could not achieve through the negotiation process. The City
continues this theme in its brief @ 6, 9. Emphatically, the City retains the
right to require firefighters to take physical examinations, as it always has
done.
09-1 ARB 4525, 109 LRP 15362 [2009 WL 8160737], @ part VII, The Citys
Right To Require Physicals.
In the instant case, the arbitrator respectfully agrees with the Company, that
the Union appears to be seeking through arbitration what it failed to obtain through
negotiation. This is grievance arbitration, not interest arbitration. Therefore, the
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arbitrator will remain consistent with the decision in IAFF and St. Petersburg.
Award
For all the foregoing reasons, the grievance is DENIED.

Dated October 5, 2012

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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